Case Note & Summary
The petitioner, Garware-Wall Ropes Ltd., the original defendant, challenged an order dated 13/01/2011 passed by the trial court allowing the respondents/plaintiffs to amend their plaint. The plaintiffs had filed a suit for possession and mesne profits under Section 41 of the Presidency Small Causes Courts Act. After issues were framed and before filing affidavit in lieu of evidence, the plaintiffs sought amendment to raise an alternate plea denying the defendant's contention that the license was irrevocable. The defendant opposed, arguing that under the proviso to Order VI Rule 17 CPC (inserted by the 2002 Amendment), no amendment could be allowed after commencement of trial unless the party showed due diligence. The trial court allowed the amendment. The High Court upheld the order, reasoning that the trial had not actually commenced as evidence had not begun, and even if it had, the amendment was necessary for determining the real controversy and did not cause any prejudice to the defendant. The court emphasized that the proviso does not create an absolute bar and that courts have discretion to allow amendments to avoid multiplicity of litigation. The petition was dismissed.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Proviso - Due Diligence - Plaintiffs sought amendment to raise alternate plea denying irrevocable license after trial had commenced - Trial court allowed amendment - High Court held that the amendment was necessary to determine real controversy and did not cause prejudice - Held that the proviso does not bar amendment if it is for just determination of the case and no prejudice is caused (Paras 5-8).
Issue of Consideration
Whether the trial court erred in allowing amendment of the plaint after commencement of trial without considering the proviso to Order VI Rule 17 CPC requiring due diligence.
Final Decision
Writ Petition dismissed. Trial court order dated 13/01/2011 allowing amendment of plaint upheld.
Law Points
- Amendment of pleadings after commencement of trial
- Order VI Rule 17 CPC proviso
- due diligence requirement
- alternate plea
- irrevocable license
- Presidency Small Causes Courts Act Section 41
Case Details
2011 LawText (BOM) (05) 61
Writ Petition No.3451 of 2011
Mr. A.A. Valsangkar i/b Mr. Pankaj Das for the Petitioner; Mr. Shardul Singh with Mr. Kamlesh Rajwani i/b Duttmenon Dunmarsett for the Respondents
Shashikant Bhalchandra Garware & Ors
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Nature of Litigation
Civil writ petition challenging trial court order allowing amendment of plaint in a suit for possession and mesne profits.
Remedy Sought
Petitioner (original defendant) sought to quash the trial court order allowing amendment of plaint.
Filing Reason
Petitioner aggrieved by trial court order dated 13/01/2011 allowing plaintiffs to amend plaint to raise alternate plea denying irrevocable license.
Previous Decisions
Trial court allowed amendment application; defendant filed writ petition.
Issues
Whether the trial court erred in allowing amendment after commencement of trial without considering the proviso to Order VI Rule 17 CPC requiring due diligence.
Submissions/Arguments
Petitioner/Defendant: Amendment cannot be entertained after commencement of trial unless due diligence shown; trial had commenced as issues were framed.
Respondents/Plaintiffs: Amendment necessary to raise alternate plea; no prejudice caused; trial not yet commenced as evidence not begun.
Ratio Decidendi
The proviso to Order VI Rule 17 CPC does not create an absolute bar to amendment after commencement of trial; the court has discretion to allow amendment if it is necessary for just determination of the case and no prejudice is caused to the other side. In this case, the trial had not actually commenced as evidence had not begun, and the amendment was to raise an alternate plea to avoid multiplicity of litigation.
Judgment Excerpts
Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of the Respondents.
Petitioner herein is aggrieved by the order passed by the trial court dated 13/01/2011 on an application filed by the Respondents/Plaintiffs for amendment of the plaint.
Plaintiffs had filed a suit seeking possession of the suit premises and for payment of mesne profits under section 41 of the Presidency Small Causes Courts Act.
The learned Counsel appearing on behalf of the Petitioner/Defendant submitted that by virtue of amendment to order VI Rule 17 by Code of Civil Procedure (Amendment) Act, 2002, S.7 (w.e.f.1-7-2002), a proviso was inserted...
The trial court, however, allowed the application for amendment.
Procedural History
Plaintiffs filed suit for possession and mesne profits under Section 41 of Presidency Small Causes Courts Act. Defendant filed written statement. Issues framed. Before filing affidavit in lieu of evidence, plaintiffs filed application for amendment of plaint. Trial court allowed amendment on 13/01/2011. Defendant filed writ petition in High Court challenging that order. High Court dismissed petition on 04/05/2011.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order VI Rule 17
- Presidency Small Causes Courts Act, 1882: Section 41
